Fault Lines, Ambiguities And Extra Baggage Of The Constitution Of The Islamic Republic Of Pakistan, 1973

FAULT LINES, AMBIGUITIES AND EXTRA BAGGAGE FAULT LINES, AMBIGUITIES AND EXTRA BAGGAGE OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973 By Syed Nasir Ali Shah Former District and Sessions Judge Constitution of a country is bedrock and foundation head of all laws. Any law found in derogation of the constitution has to be declared non est. A constitution has futuristic approach and so is cognizant of the future needs and inspiration of the countryman. A constitution has to be proactive and not static. It should be couched in such language that efflux of time will not change, dissipate or lose its meaning, import, relevance or significance. Thus a constitution needs to be comprehensive and all embracing. The words used in the constitution should have explicit meaning leaving nothing to imagination. But a browse through our constitution reveals that there are some gaping holes and incongruities. These may not be by design but may be by default or oversight. To amplify it the constitution is very particular about the process and procedure of elections to different offices, passage of Bills and resolutions and the method of securing results. The terms used in the constitution are "by majority of the total membership" or "majority of the members present and voting." For instance proviso to Article 82(2) which relates to procedure relating to Annual Budget statement provides for votes of "majority of the total membership of the Assembly". Article 91(4) which deals with the election of the Prime Minister also provide "by the votes of the majority of the total membership of the National Assembly". Similarly Article 95(4) which deals with resolution for a vote of no confidence against the Prime Minister talks about "majority of the total membership of the National Assembly". In the same way Articles 130(4) and 136 which respectively deal with election of Chief Minister and a resolution for no confidence against Chief Minister provide for "majority of the total membership". Article 239 which deals with the amendment of the constitution also provides for "by the votes of not less than two third of the total membership of the House". As against this Article 70 which relates to introduction and passing of Bills provides for "majority of the members present and voting" in the joint sitting... Similarly Article 72(4) which deals with procedure at joint sitting also provides for votes of the "majority of the members present and voting". In the same way Article 75(2) which deals with President's assent to Bills also talks about the votes of majority of the members of both Houses present and voting. Similarly proviso of Article 91 which provides for election of the Prime Minister where no member secures majority in the first poll also envisages "majority of the votes of the members present and voting". And similarly Article 116 which deals with Governor's assent of Bills also mentions "majority of the members of Provincial Assembly present and voting". But queerly and paradoxically enough Article 48(6) which deals with the holding of referendum neither provides for majority of the total membership nor majority of the members present and voting. It simply provides for referring the matter to a joint sitting of Majlis-e-Shoora (Parliament) and its approval by the Parliament. This opaqueness and ambiguity is hard to fathom. Our constitution appears to be age centric. In terms of Article 25-A compulsory education to all children of the age of five to sixteen years has been provided. The President shall not be less than forty five years of age (Article: 41). Governor shall not be less than thirty five years of age (Article: 101). A member National Assembly shall not be less than twenty five years of age (Article: 25). A voter shall not be less than 18 years of age (Article: 51). A Senator shall not be less than thirty years of age (Article: 62). Maximum age limit of Auditor General is sixty five years (Article: 168). Maximum age limit of Chief Election Commissioner is 68 years (Article: 213). And maximum age limit of members of Election Commission is sixty five years (Article: 218). But when it comes to judiciary things start getting nebulous and blurred. No doubt according to Article 193(2) the minimum age limit for a judge of High Court is forty five years and retiring age is sixty two years (Article: 195) but no minimum age limit for judge of Supreme Court has been provided. There is no minimum or maximum age limit of a judge of Federal Shariat Court. There is salutary provision "that the President shall appoint the most senior of the others judges as Chief Justice of Pakistan" (Article: 180). But no such corresponding provision has been provided for the appointment of Chief Justice of a High Court as Article 196 simply provides that "one of the other judge to be appointed as Chief Justice". Within the scheme of Article 175-A Attorney General for Pakistan is a member of Judicial Commission of Pakistan for the appointment of Judges of Supreme Court. But for the appointment of judges of a High Court no such representation has been given to the Advocate General of the Province concerned whose duties and responsibilities are at par with the Attorney General for Pakistan. This appears odd. Within the contemplation of the constitution Federal Shariat Court has a slight edge over High Court as any decision of the Federal Shariat Court is binding on the High Court (Article: 203GG) but there is no mention of judge of Federal Shariat Court in Articles 68 and 114 which provide that no discussion shall take place in (Majlis-e-Shoora) (Parliament) and Provincial Assembly with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties. Besides, Article 228 which deals with the composition of Islamic Council inter alia provides that "not less than two of the members are persons each of whom is, or has been judge of the Supreme Court or of a High Court". But there is no mention of a judge of Federal Shariat Court in the said Article. Article 207 provides that a judge of the Supreme Court or of a High Court shall not hold any other office of profit in the service of Pakistan....But no such bar is applicable to a Judge of Federal Shariat Court. In terms of Article 209 (8) a Code of Conduct has been provided for judges of Supreme Court and High Courts. But no such Code of Conduct has been provided for the judges of Federal Shariat Court. One of the ground for removal of a judge under Article 209(5)(a) is that he may be incapable of properly performing the duties .. But in the report to be submitted by the Council under Article 209(6)(i) the Council is merely obligated to return findings that the judge is incapable of performing the duties as the word properly is conspicuously missing. Interestingly Articles 177 and 193 which respectively deal with the qualifications of a judge of Supreme Court and judge of a High Court inter alia provide as under:- 177.(1) The Chief Justice of Pakistan and each of the other Judges of the Supreme Court shall be appointed by the President in accordance with Article 175A. (2) ------------------------------------------------- (a) has for a period of, or for periods aggregating, not less than five years been a judge of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or (b) has for a period of, or for periods aggregating, not less than fifteen years been an Advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day). 193. (1) The Chief Justice and each of other Judges of a High Court shall be appointed by the President in accordance with Article 175. (2) ------------------------------------------------- (a) he has for a period of, or for periods aggregating, not less than ten years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or (b) ------------------------------------------------- (c) ------------------------------------------------- And according to Article: 265(2) the commencing day of the constitution is the Fourteenth day of August, one thousand nine hundred and seventy three (14-08-1973). As such the experience envisaged under Articles 177 and 193 referred to above is relatable to the period prior to 14-08-1973. Now supposing and that too theoretically if now a person is appointed as a judge of Supreme Court at the age of fifty five years which is a normal age for such an appointment, his age on 14-08-1973 was just around eighteen years. Can a person of such an age can possibly have or claim to have such experience. And in the case of similar appointment of a judge of a High Court the position is more absurd and preposterous. So with the efflux of time these provisions have outlived their utility, significance and relevance, become redundant and obsolete and as such need to be jettisoned. There is another interesting aspect. In terms of Article 177 an advocate of High Court repeat advocate of High Court of fifteen years standing is eligible for appointment as a judge of Supreme Court. And again theoretically if such a person is appointed as judge of Supreme Court then there will be a person adorning the exalted seat of justice of Supreme Court who had never appeared and was not qualified to appear in the Supreme Court. That would be bizarre indeed. There is deluge of the word "Majlis-e-Shoora" in the constitution. Almost on 128 occasions this word has been used in the constitution. Interestingly and significantly on 14-08-1973 when the constitution came into being this word was alien to the constitution. During the dictatorial era of Zia-ul-Haq the parliament was packed with selected persons. In a bid to give them a touch of respectability those selected persons were branded as "Members Majlis-e-Shoora" and the Parliament was styled as "Majlis-e-Shoora". Thus the word "Majlis-e-Shoora" happened to creep into the constitution. The word "Majlis-e-Shoora" should not be confused or linked with the Islamic provisions of the constitution. The name of the constitution is "Islamic" itself. Even preamble of the constitution envisages that "the Muslim shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah". According to Article 2 Islam is the state religion of Pakistan. Article 31 provides for Islamic way of life. Articles 41(1) and 91(3) respectively provide that the President and Prime Minister of the country shall be Muslim. Part IX of the constitution comprising Articles 227 to 231 amplifies the Islamic provisions. And Federal Shariat Court can declare any law or provision of law as repugnant to the Injunctions of Islam (Article 203D). So democracy having returned to the country the term "Majlis-e-Shoora" has lost its relevance and significance. It is now an unnecessary appendage and extra baggage of the constitution which needs to be exorcised. Within the contemplation of Article 213 the Prime Minister in consultation with the Leader of Opposition in the National Assembly shall forward three names for the appointment of Chief Election Commissioner to a Parliamentary Committee for hearing and confirmation of any person. And in case of lack of consensus between Prime Minister and Leader of Opposition each shall forward separate lists to the Parliamentary Committee for consideration which may confirm any name. Similar procedure is envisaged for appointment of the members of Election Commission. The Parliamentary Committee is evenly poised with equal representation from the treasury and the opposition. No way out has been put forward in the constitution to cater the situation where Parliamentary Committee fails to confirm any name. The country was confronted with such a situation in the recent past. No solution within the scheme of the constitution was forthcoming and the controversy had landed in cul-de-sac. Resultantly the offices of the Chief Election Commissioner and some members remained vacant for considerable long time. Thus remedial amendment in the constitution to meet such eventuality is imperative. Article 63(1)(2) which deals with disqualifications for the membership of Majlis-e-Shoora (Parliament) talks about Companies Ordinance, 1984 (XLVII of 1984). This law has since been repealed and Companies Act, 2017 has been promulgated. And lastly Article 185(2)(a) which deals with appellate jurisdiction of Supreme Court inter alia provides appeal to the Supreme Court "if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or transportation for life . Incidentally sentence for transportation for life is not provided under any statute. As alluded in the opening part of this Article constitution is a living organ and thus has to be proactive to cater for emerging needs. So it is imperative for the Parliament to closely and continually scrutinize the constitution and whenever and wherever necessary introduce amendments to make it in congruence with the changed situations. A Parliamentary Committee comprising members of all political parties should be formed to ponder over such matters and suggest remedial amendments to make the constitution more vibrant and workable.